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Articles 1051 - 1080 of 3741
Full-Text Articles in Law
Highest Form Of Flattery - Application Of The Fair Use Defense Against Copyright Claims For Unauthorized Appropriation Of Litigation Documents, The, Davida H. Isaacs
Highest Form Of Flattery - Application Of The Fair Use Defense Against Copyright Claims For Unauthorized Appropriation Of Litigation Documents, The, Davida H. Isaacs
Missouri Law Review
Part II of the Article examines which types of legal works are entitled to the limited-time monopoly provided by copyright protection. Reviewing both the purpose of the memorandum of law and the complaint, as well as the process of drafting those documents, it becomes clear that not all such documents are the formulaic, fill-in-the-blanks works that some people may imagine. Indeed, many contain some portions which entail both original effort and creative judgment. For those documents in which the idea behind the original, creative expression may be expressed in a myriad of other ways, protection is proper. Portions of many …
Alcohol-Related Car Accidents - The Eighth Circuit Moves Toward Policy Change In Erisa Litigation, Marcus Wilbers
Alcohol-Related Car Accidents - The Eighth Circuit Moves Toward Policy Change In Erisa Litigation, Marcus Wilbers
Missouri Law Review
According to the National Center for Statistics and Analysis, the 16,694 alcohol-related fatalities in 2004 accounted for 39% of all traffic deaths. Although declining slightly from previous years, alcohol-related driving deaths are tragic, and their devastating effects on families are readily apparent. Although typically dubbed "drunk-driving accidents," courts have traditionally refused to describe these deaths as "accidental." This is particularly true when decedents or their beneficiaries attempt to collect accidental death benefits under the Employment Retirement Income Securities Act ("ERISA"). Focusing on the previously mentioned statistics, courts have often reflected the social intolerance for drunk driving in their decisions. Courts, …
Unnecessary But Proper: The Missouri Court Of Appeals Expands The Constructive Trust Doctrine While Ignoring The Recording Act, Benjamin C. Hassebrock
Unnecessary But Proper: The Missouri Court Of Appeals Expands The Constructive Trust Doctrine While Ignoring The Recording Act, Benjamin C. Hassebrock
Missouri Law Review
Missouri common law has long held that a constructive trust should be imposed only in cases of fraud or other wrongful conduct. The Missouri Court of Appeals overruled that precedent in Brown v. Brown, holding that a mere mistake is a sufficient ground for imposing a constructive trust. With this decision, the court considerably expanded the circumstances under which a plaintiff may be entitled to this equitable remedy. While the essential holding of Brown is a positive step for Missouri case law, the decision failed to distinguish between a mistaken conveyance that is purely gratuitous and one that is supported …
You're Fired - The Role Of State Courts In The Expungement Of Criminal Records For Federal Security Clearance Purposes, Megan Dunn
Missouri Law Review
The events of September 11, 2001, radically altered many facets of American life. One dramatic change was the establishment of the Federal Department of Homeland Security, created to regulate and oversee various aspects of the federal government in an effort to promote safety and prevent terrorism. As part of this mission, the Department of Homeland Security now manages the investigations that determine eligibility for security clearances necessary for many federal government jobs. As a result of this process, Scott Dyer was denied renewal of the security clearance necessary for his employment as a building engineer at a federal courthouse in …
Stretching The Fourteenth Amendment And Substantive Due Process: Another Close Call For 42 U.S.C. 1983, Brad K. Thoenen
Stretching The Fourteenth Amendment And Substantive Due Process: Another Close Call For 42 U.S.C. 1983, Brad K. Thoenen
Missouri Law Review
Forty years ago, Justice John Harlan noted that the United State Constitution "is not a panacea for every blot upon the public welfare, nor [is the] Court . . .a general haven for reform movements." Written during an era of judicial progressivism, Justice Harlan's words capture perfectly the essence of the Eighth Circuit's majority opinion in Terrell v. Larson, a recent substantive due process case from Minnesota. Substantive due process claims often tug at the heartstrings of our jurisprudence, and Terrell is certainly no exception. This Note will explore the legal foundations and policy implications of Terrell and attempt to …
Under Construction: Questioning Whether Statutory Construction Principles Justify Individual Liability Under The Family And Medical Leave Act, Sandra F. Sperino
Under Construction: Questioning Whether Statutory Construction Principles Justify Individual Liability Under The Family And Medical Leave Act, Sandra F. Sperino
Missouri Law Review
The question of whether individuals can be personally liable under the Family and Medical Leave Act ("FMLA") has been percolating in the federal courts for more than a decade. Over this period, district courts throughout the country have consistently held that individuals working for private employers can be held liable for FMLA violations. Given the length of time over which the courts have been considering this issue, it would seem safe to assume that the courts have fully examined the factors that might lead to individual liability, such as the FMLA's statutory language, other courts' interpretations of similar language, the …
Eighth Circuit Revisits Restoration Exception To Domestic Violence Gun Ban And Says Restore Means Restore, Natalie J. Nichols
Eighth Circuit Revisits Restoration Exception To Domestic Violence Gun Ban And Says Restore Means Restore, Natalie J. Nichols
Missouri Law Review
Under the Eighth Circuit's analysis and Missouri law, a person who did not go to jail following a domestic violence conviction may be forever barred from possessing a firearm, while a person who did serve jail time will be able to possess a firearm upon completion of the sentence.4 Several circuits have adopted the Eighth Circuit's reasoning. Others have attempted to avoid similarly odd results.5 For example, the First and Sixth Circuits have held that persons who have not lost their civil rights under state law may, nevertheless, be treated as having them restored in order to qualify for the …
Calculating Lost Profit Damages: The Missouri Supreme Court Semi-Fixed The Variable Appellate Caselaw, Jennifer Koboldt Bukowsky
Calculating Lost Profit Damages: The Missouri Supreme Court Semi-Fixed The Variable Appellate Caselaw, Jennifer Koboldt Bukowsky
Missouri Law Review
Prior to Ameristar Jet Charter, Inc. v. Dodson International Parts, Inc., a split of authority existed among appellate cases in Missouri as to how to calculate lost profit damages. One line of cases stood for the proposition that all overhead expenses, including fixed expenses, should be deducted from estimated lost revenues to determine lost profit damages. Another set of cases explicitly refused to deduct all overhead; those courts only deducted variable expenses from estimated lost revenue to determine lost profit damages. The Missouri Supreme Court resolved this conflict in a unanimous decision in Ameristar. The court held that fixed expenses …
Victimhood, Jessie K. Liu
Victimhood, Jessie K. Liu
Missouri Law Review
Part I of this paper examines the theoretical tension between using the total harm caused by a convicted defendant to determine the proper punishment and limiting the categories of harm for which punishment can be imposed. This is the equivalent in the criminal context of the problem discussed in the classic tort case of Palsgraf v Long Island Railroad. How should a legal regime limit the universe of victims? Part II provides a brief overview of pre-Guidelines decisions defining the term "victim" for sentencing purposes, focusing in particular on constitutional decisions about victim participation. Although the Sentencing Guidelines have made …
Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth
Modernizing Security In Rents: The New Uniform Assignment Of Rents Act, R. Wilson Freyermuth
Missouri Law Review
This Article explains the provisions of the UARA and encourages its prompt adoption in states that presently lack comprehensive statutes governing security interests in rents. Part I provides a general background about state mortgage law and the nature of the mortgagee's right to rents arising from the mortgaged premises, as well as the general impact of the federal Bankruptcy Code upon a mortgagee's security interest in rents. In Part II, the Article highlights four problem areas that have produced substantial litigation and uncertainty about the enforceability of security interests in rents in the bankruptcy context. These are (a) the proper …
Are You Misappropriating Client Funds - Missouri's Iolta Plan After Mottl, Timothy D. Steffens
Are You Misappropriating Client Funds - Missouri's Iolta Plan After Mottl, Timothy D. Steffens
Missouri Law Review
In Mottl v. Missouri Lawyer Trust Account Foundation, the Missouri Court of Appeals for the Western District addressed the constitutionality of Missouri's IOLTA program for the first time and held that participation in Missouri's IOLTA program is not state action because of the voluntary nature of the program. 6 By so deciding, the court shifted liability for participation in the program from the state to private attorneys and law firms. As a result, an attorney must inform a client during initial consultation that the attorney or the attorney's firm voluntarily participates in the IOLTA program and that, as a result …
Oh. What A Tangled Web...The Continuing Evolution Of Personal Jurisdiction Derived From Internet-Based Contacts, Scott T. Jansen
Oh. What A Tangled Web...The Continuing Evolution Of Personal Jurisdiction Derived From Internet-Based Contacts, Scott T. Jansen
Missouri Law Review
The explosive impact of the Internet has, by its very existence and lack of defining boundaries, opened the door to a fundamental shift in our traditional conceptions of commerce, interaction and accessibility to information. As the law struggles to address this medium of communication - as a realm unto itself requiring new law or simply as another method of communication to which we will apply traditional notions - technology continues to march forward. New conundrums seem to pop up each year, as the World Wide Web further invades daily life. Of course, the usual suspects are involved: free speech, privacy, …
Is It Sexual Harassment Or Not - The Single Incident Exception, John C. Ayres
Is It Sexual Harassment Or Not - The Single Incident Exception, John C. Ayres
Missouri Law Review
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace. In a 2004 case of first impression, the Eighth Circuit Court of Appeals looked at an employer's affirmative defense against a hostile work environment claim involving a single incident of sexual harassment committed by a supervisor. The Eighth Circuit modified the test handed down by the Supreme Court in this situation. After outlining the historical background and rationale for imposing liability on employers for the actions of their supervisors, this Note will explore the logic behind the Eighth Circuit's interpretation of the Supreme Court test …
Perspectives On Decisionmaking From The Blackmun Papers: The Cases On Arbitrability Of Statutory Claims, Ellen E. Deason
Perspectives On Decisionmaking From The Blackmun Papers: The Cases On Arbitrability Of Statutory Claims, Ellen E. Deason
Missouri Law Review
Judges' decisions must rank among the most documented types of decisionmaking. At the appellate level, in particular, the arguments made to judges are a matter of record and the decisions are recorded in written opinions that provide a reasoned explanation. Yet there are many unknowns about this decisionmaking process. This article draws on information found in the Blackmun Papers collection at the Library of Congress to explore Supreme Court decisionmaking as illustrated in the series of cases that opened the door to welcome arbitration of statutory claims. I The cases brought about the weakening and eventual abrogation of a long-standing …
No More Russian Roulette: Chapter 13 Cram-Down Creditors Take A Bullet, Jon W. Jordan
No More Russian Roulette: Chapter 13 Cram-Down Creditors Take A Bullet, Jon W. Jordan
Missouri Law Review
Until the United States Supreme Court's decision in Till v. SCS Credit Corp., secured creditors in Chapter 13 bankruptcy cases likely viewed the forced acceptance of a debtor's Chapter 13 repayment plan as a high-stakes game of chance. Prior to this decision, the interest rate applied to the deferred payments to "cram-down" creditors varied dramatically, depending upon the jurisdiction in which the debtor filed bankruptcy and the broad discretion of the bankruptcy court judge. However, by misinterpreting the legislative intent of Congress, the Supreme Court adopted a standard that will consistently under-compensate creditors. Suddenly, secured creditors' high-stakes game of chance …
Lifting The Veil: Justice Blackmun's Papers And The Public Perception Of The Supreme Court, Tony Mauro
Lifting The Veil: Justice Blackmun's Papers And The Public Perception Of The Supreme Court, Tony Mauro
Missouri Law Review
The starting point of any discussion of the public perception of the United States Supreme Court is the liklihood that no public perception exists. By and large, the Supreme Court operates at the very outer edges of public awareness; for years, polls have indicated that many more Americans know the names of the three Stooges than any three Supreme Court justices.
Tales From The Blackmun Papers: A Fuller Appreciation Of Harry Blackmun's Judicial Legacy, Joseph F. Kobylka
Tales From The Blackmun Papers: A Fuller Appreciation Of Harry Blackmun's Judicial Legacy, Joseph F. Kobylka
Missouri Law Review
Even after he leaves the Court, a Justice remains part of the orchestra. Those who succeed him may not copy his style, but often play within the same melodic and rhythmic structures. Justice Blackmun himself, over the course of preparing his Roe and Doe opinions, eventually fell into the structures put in place in cases ranging from Union Pacific Railway Co. v. Botsford to Stanley v. Georgia. The Justices he left behind did much the same with Roe and, more significantly, Bowers. The Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey represented a partial "victory" for Justice Blackmun, …
Politics And Judgment, Suzanna Sherry
Politics And Judgment, Suzanna Sherry
Missouri Law Review
Two hundred years after its most famous invocation in Marbury v. Madison, judicial review has apparently lost its luster. Despite its global spread, it is in disrepute in its country of origin. The mainstream American academic attitude toward judicial review as practiced by the modem Supreme Court ranges from open hostility to a position similar to Winston Churchill's on democracy: It is the worst way to implement a Constitution, except for all the rest. In this essay, I want to explain the source of the hostility, defend judicial review against its critics, and make a few suggestions for improvement.
Monastic Life Of A Federal Distric Judge, The, Colleen Mcmahon
Monastic Life Of A Federal Distric Judge, The, Colleen Mcmahon
Missouri Law Review
There is no one on earch more monk-like than a federal district judge. As a result, there is no one on earth who more surely needs to have some understanding of core monastic virtures in order to do the job well.
Revelations From The Blackmun Papers On The Development Of Death Penalty Law, Martha Dragich Pearson
Revelations From The Blackmun Papers On The Development Of Death Penalty Law, Martha Dragich Pearson
Missouri Law Review
Justice Blackmun's legacy is strongly linked to two issues - abortion and capital punishment. Blackmun's opinions in these controversial areas account for much of the notion that his ideology changed while on the Court. Participants in this Symposium have reflected on these and other areas where Justice Blackmun left his mark on American law. Professor Deason explores the arbitrability cases and shows that the Court struggled - and Justices changed their minds - even in connection with relatively technical legal issues arising in non-controversial commercial contexts. One reason the Court struggles with some issues is that legal standards are (or …
Justice Harry Blackmun And The Phenomenon Of Judicial Preference Change, Theodore W. Ruger
Justice Harry Blackmun And The Phenomenon Of Judicial Preference Change, Theodore W. Ruger
Missouri Law Review
We are fond of putting our judges into neat adjectival boxes, particularly when they sit on the Supreme Court. These typologies often reflect perceived attitudinal or ideological preferences; some Justices are called "liberal" or "conservative" or "moderate," or occasionally some hyphenated combination thereof. Or the labels might seek to capture variations in jurisprudential philosophy or method, such as "formalist," "pragmatist," "originalist," "textualist," or "minimalist." No Justice is immune from this classification game, and the subject of this symposium is an apt example. From the moment of his nomination by President Nixon in 1970, Harry A. Blackmun attracted a bevy of …
Did Roe V. Wade Pass The Arbitrary And Capricious Test, Daniel A. Farber
Did Roe V. Wade Pass The Arbitrary And Capricious Test, Daniel A. Farber
Missouri Law Review
Justice Blackmun sat on 3,653 cases during his twenty-four terms on the Supreme Court, yet he will surely be best remembered for his role in one case, Roe v. Wade. Seldom has a judicial decision been more controversial. True, many opinions are harshly criticized. But the criticisms of Roe were distinctive. According to critics, Roe was not merely bad law, in some sense it was not law at all. One particularly outspoken critic recently calls Roe "perhaps the most indefensible 'constitutional' decision ever reached by this Court to date' as well as "manifestly and atrociously contrary to the Constitution."
Internationalism Of Justice Harry Blackmun, The, Margaret E. Mcguinness
Internationalism Of Justice Harry Blackmun, The, Margaret E. Mcguinness
Missouri Law Review
This comment is intended to provide a roadmap for closer examination of the Blackmun Papers and to evaluate the sources of internationalism in Justice Blackmun's opinions. An understanding of those sources can in turn inform typologies of internationalism among other Justices, past, present, and future. It seems particularly salient to be discussing the internationalist aspects of Justice Blackmun's legacy today, at a time when the Court is deeply divided on questions of executive power over foreign affairs, the relevance of foreign and international political practices and judicial opinions to constitutional interpretation, and the extent to which decisions of international tribunals …
Some Reflections On The Symposium: Judging, The Classical Legal Paradigm, And The Possible Contributions Of Science, Christina E. Wells
Some Reflections On The Symposium: Judging, The Classical Legal Paradigm, And The Possible Contributions Of Science, Christina E. Wells
Missouri Law Review
One theme running through the many excellent contributions to this symposium involves the myriad influences of judicial decision-making. As Professor Wrightsman notes, Supreme Court Justices' personal characteristics may affect their ability to influence colleagues and, consequently, the outcome of Supreme Court decisions. Professor Ruger observes that judges have both attitudinal and jurisprudential preferences that may change over time, affecting legal outcomes differently as time passes. Professor Sisk similarly notes that judges' personal values and experiences influence their decision-making. These observations are consistent with those of numerous other scholars, who find wide-ranging and diverse influences on the judicial resolution of legal …
Does Loss Of Custody Of A Child Resulting From Attorney Negligence Cause Damage, Jesse E. Weisshaar
Does Loss Of Custody Of A Child Resulting From Attorney Negligence Cause Damage, Jesse E. Weisshaar
Missouri Law Review
Attorneys face the prospect of legal malpractice actions on a daily basis and in regard to every type of legal issue with which they deal. Indeed, a lawyer's negligence subjects him to liability whether he has mishandled a multimillion dollar business transaction or failed to adequately represent his client in a custody battle over the client's children. Whereas the harm in the former example is clearly monetary, the latter example presents the issue of whether the client can recover monetary damages for loss of custody of his child, a harm that is non-economic in nature. While few people would likely …